Mach Recruitment Ltd v Maria Oliveira

For a service provision change under Transfer of Undertakings (Protection of Employment) Regulations 2006, an organised grouping must be organised by reference to the particular client’s requirements and have the relevant activities as its principal purpose immediately before the transfer. The arrangement need not result from a formal or expressly recorded decision to segregate employees. A tribunal may infer the requisite organisation from evidence that employees consistently worked as a settled group at a specified location for that client, provided the arrangement was more than coincidental or circumstantial. An appellate court will not interfere merely because another tribunal might have reached a different conclusion. It must identify perversity or another error of law.

The claimant had first been employed by G-Staff Ltd and supplied to Butcher’s Pet Care Limited as an Alutray Operative. A temporary work agency later began providing services to Butcher’s.

The Employment Tribunal held that the cessation of G-Staff’s activities and their assumption by the later agency was a service provision change. It found that G-Staff had an organised grouping of employees whose principal purpose was work for Butcher’s.

Mach Recruitment Ltd appealed, contending that the tribunal had inferred organisation from shift arrangements and working practice without evidence of a deliberate decision by G-Staff. The central issue was whether the tribunal had been entitled to find an organised grouping for the purposes of TUPE.

1. Appeal dismissed. The Employment Tribunal’s conclusion that there was an organised grouping of employees was open to it on the evidence and was not perverse.

2. Under regulation 3 of the Transfer of Undertakings (Protection of Employment) Regulations 2006, the relevant question was whether, immediately before the change, the transferor had an organised grouping whose principal purpose was carrying out the relevant activities for the particular client. The grouping must be organised by reference to that client’s requirements, rather than merely arising from employees’ working patterns.

3. The statutory language did not require a formal, minuted, or literally conscious decision to segregate a particular group. Agency work may be flexible, precarious and changing. That flexibility does not prevent a grouping from being organised where the evidence supports an inference that workers were consistently assigned as a group to perform specified work for the client.

4. Here, the tribunal had found that the claimant worked with substantially the same people throughout; replacements joined when individuals left; and the group was placed at a specific location to perform Alutray work for Butcher’s. It had directed itself that the arrangement had to be more than coincidental or circumstantial and found that it was. The absence of fuller evidence from the employer about how workers were selected or supplied was material. The tribunal was entitled to rely on the credible evidence it heard.

5. The tribunal had not confined itself improperly to the claimant’s work or overlooked a wider set of activities. It had considered the relevant activities and the group carrying them out. Applying the guidance in Amaryllis Ltd v McLeod and others and Rynda (UK) Ltd v Rhijnsburger, it was entitled to conclude that the group’s principal purpose was the carrying out of activities for the particular client. The fact that another tribunal might have reached a different conclusion did not establish perversity.

• Employment Appeal Tribunal: Mach Recruitment Ltd’s appeal was dismissed. The tribunal’s finding of a service provision change under the Transfer of Undertakings (Protection of Employment) Regulations 2006 was upheld.
• Employment Tribunal: Held that G-Staff Ltd had an organised grouping of employees whose principal purpose was activities for Butcher’s Pet Care Limited, and that the change of contractor amounted to a service provision change. No citation was stated.